Cage v. Trager

60 Miss. 563 | Miss. | 1882

ChaIíMers, J.,

delivered the opinion of the court.

This is a proceeding to establish a public landing on the Mississippi Biver at Fort Adams, in Wilkinson County, under authority of a special act of the Legislature for that purpose. Acts 1882, p. 273.

The constitutionality of the act which, in most of its requirements, is a reproduction of the general act in the Code of 1871 for the establishment of public landings, is attacked on several grounds, the principal one being that it does not compel those seeking the condemnation of private property themselves to institute and carry through proceedings for the ascertainment of the damage to be paid or tendered to the owners of property taken, but devolves that duty or privilege oil the owners.

In this respect the act is similar to sect. 1884 of the Code of 1871, and in the case of Pearson v. Johnson, 54 Miss. 259, a doubt was expressed as to the constitutionality of that section, and the advisability of its amendment was suggested. Acting on the suggestion, it was amended in sect. 918, of the Code of 1880, by which the obligation of ascertaining the compensation to be paid to the owner is imposed as a precedent duty on those who seek the condemnation of private property. An attentive examination of the subject now, on reason and authority, satisfies us that while the provision of the Code of 1880 is wise, and more salutary as better protecting the rights of the citizen, there is no sound constitutional objection to the course provided in the Code of 1871, and in the special act here involved.

They both provide for actual or constructive notice to the property-holder, afford him opportunity to present his claim for compensation, and prohibit the taking póssession. or appropriation of his land by the public' until his claim has been adjudicated by an impartial tribunal, and the amount found due him been paid or tendered. This, according to all the authorities, is sufficient where the State or any of its subdivisions is concerned.

There are, indeed, many cases which hold that where the State is a party to the proceedings, occupation of the land may precede actual payment or tender, a doctrine which we are by no means prepared to sanction. Wherever, however, due notice has been given, and a fair opportunity afforded to propound the claim for compensation, we see no constitutional objection to an imposition on the owner of the duty of asking it. Cooley’s Const. Lim. 560, 561, 562.

The mode of notice provided in this act as to non-residents, to wit, by posting a written notice on the land proposed to be taken, and the time limited for preferring a demand for compensation, to wit, until the next ensuing-meeting of the Board of Supervisors, may in some cases operate a great hardship upon those who, in fact, have no actual notice of the proceeding; but we are not now called upon to consider the effect of such perfunctory process and such meagre allowance of time, because the owner here, although a non-resident of the State, knew of the action taken and within the time limited filed this bill.

We would remark that the mode of condemnation provided by the act is substantially the same as that required for the laying out of public roads in the State, and to declare it unconstitutional would render invalid the proceedings had in laying out all our roads through a long series of years in the past. Code 1880, sect. 826; Code 1871, sect. 2339; Code 1857, p. 172, Art. IV.

The act in question authorizes the Board of Supervisors to lease out the landing after it has been established, taking bond and security from the lessee for the due performance of his duty and his faithful compliance with such regulations as the board may adopt, and the constitutionality of this provision is assailed. Since no lease of the landing here sought to be established has been made or attempted, that question is not presented by the record.

Lastly, it is insisted that if the law be constitutional, the proceedings in this case were invalid, because the record fails to show affirmatively that the commissioners appointed by the board to select and report upon a site for the landing were residents of the county and freeholders or householders. The poiut is not well taken. The court having jurisdiction of the subject-matter by virtue of a constitutional statute, and having obtained jurisdiction of the person in the mode required by the statute, the usual presumption of correctness attaches to its subsequent acts. The case is not like Allen v. Levee Commissioners, ante, where we refused to apply the presumption of correctness to the action of a sheriff who was authorized to supply vacancies on a jury for assessing damages to land. Being a mere ministerial officer, acting beyond the scope of his ordinary official duty, there could not be attributed to his action, in executing the extraordinary function of selecting and appointing a jury, any of the presumptions which attach to the action of judicial tribunals.

Decree overruling motion to dissolve injunction reversed and cause remanded.